News and Cases from China: February 2017
Fake ‘Ferrero’ and ‘Dove’ chocolates case - Court imposes heavy penalties
Issue date: 25 January, 2017
Following customer complaints about the taste of chocolates, and a police investigation overseen by the Ministry of Public Security, an action was brought before the Xinwu District People’s court in Wuxi, Jiangsu province in East China. The chocolates in question had been sold as ‘Ferrero’ and Mars’ ‘Dove’ chocolates: the Court found that they were counterfeit. The eight defendants were sentenced to between one and five years’ imprisonment (half of the sentences being probationary), and subjected to fines ranging from RMB 10,000 to RMB 1.85 million (approx. US$1,500.00 to 268,000.00). The defendants on probation are not permitted to engage in any operations relating to the manufacture or sale of chocolate. Pursuant to Article 4 of The Interpretations on Several Issues Relating to Specific Laws Applicable to Handling of Criminal Cases of Intellectual Property Infringement (II), the Court considered key factors of the case comprehensively and imposed penalties on the basis of the illegal business volume.
NDRC issues Guiding Catalogue of Key Strategic Emerging Industries (2016 Edition)
Issue date: 7 February, 2017
Recently, in the context of implementation of China’s 13th Five-Year Plan, the National Development and Reform Commission, China’s economic policy making body, issued its Guiding Catalogue of Key Products and Services in Strategic Emerging Industries (2016 Edition) (the Catalogue).
The Catalogue covers eight specific sectors in five major fields, with an emphasis on innovative areas including information technology, high end equipment manufacture, biotechnology and new energy, as well as Intellectual property services, which include IP agency services, legal services such as litigation, IP rights protection and due diligence, and commercial services such as the appraisal, trading, transformation, trusteeship, investment and financing, operation and insurance of IP.
The Beijing Higher People’s Court upholds IP Court’s Highest Compensation Award
Issue Date: 07 February, 2017
The Plaintiff, Panasonic, brought infringement proceedings before the Beijing Intellectual Property Court (BIPC), claiming that Zhuhai Kingdom’s product (KD -2331A Ionic Hot Mist Facial Steamer) infringed its design patent (No. ZL201130151611.3). On 29 December, 2016, the Court handed down judgment in favour of Panasonic, awarding damages of RMB 3 million (approx. US$435.000), including reasonable costs of RMB 200,000. The Defendant appealed to the Beijing Higher People’s Court (BHPC).
The BHPC upheld the judgement of the BIPC, clarifying the evidentiary requirements in relation to the award of compensation in patent cases. It held that a voucher of expenditure i.e. documentary proof of loss, is indispensable, except in exceptional cases. Courts should use logical reasoning and daily life experience in considering whether the evidence establishes a certain level of damage.
NCAC issues 13th Five-Year Plan for Copyright-related Works
Issue date: 16 Feb, 2017
The National Copyright Administration Council’s (NCAC) recently issued Five-Year Plan states that law enforcement and copyright regulation will be constantly enhanced, resulting in rapid development of the copyright industry, including an increase in copyright creation, application, protection, and management and service capabilities.
The Plan requires efforts to push ahead the third revision of the Copyright Law; increase statutory compensation for infringement; centralise the copyright management system; adopt appropriate rules in relation to copyright and the internet, including enhancing the monitoring and regulation of online literature, music, film, games, animation, software and other core fields; and further standardizing the registration requirements for copyright pledges (security interests), foreign-related copyright contracts and copyright licences and assignments.